P10 v. Google: Public Interest Prevails in Digital Copyright Showdown

P10 v. Google: Public Interest Prevails in Digital Copyright Showdown

Here are some of the highlights. Today's decision reversed the lower court's holding [PDF] that Google's thumbnails were not a fair use, following and bolstering an earlier image search engine precedent, Kelly v. Arriba Soft [PDF]. The court rightly took into account the important public benefit that search engines provide -- not simply the impact on the particular parties in this case -- and what would serve copyright's fundamental goal of promoting access to creative works. While Google's transformative use of the image provided a very real public benefit, Perfect 10's potential loss of thumbnail licensing revenue was highly speculative.

The Court also shot down Perfect 10's claim that Google was displaying the full-sized versions of infringing images from third-party websites by framing them or providing an HTML in-line link tag to end users. The Court correctly discerned the technology at issue, finding that when you frame a page or provide an in-line link, it's the site that you're pointing to that could be displaying the picture, not the search engine that coughs up the HTML.

Though the thumbnail issue has made the most headlines, Perfect 10 actually brought a grab bag of secondary liability claims as well, asking the court to hold Google liable for indexing third-party infringing sites. Perfect 10 predicated much of its argument on the fact that Google was on general notice that its index contained links to infringing content, and argued that Google could be held liable for failing to actively police its system or design it differently. A ruling in favor of Perfect 10 could have been a catastrophe to web hosting services, video sharing sites, and myriad other dual-use tools that link to or host third-party content.

Perfect 10's arguments aren't so different from the ones made by the entertainment industry -- but not accepted by the Supreme Court -- in Grokster, and thus it should be no surprise that that the MPAA and RIAA piled on, filing briefs in support of Perfect 10. Once again, this was a case of Hollywood and its allies trying to lockdown innovation.

Fortunately, the Court wasn't buying it. It rejected Perfect 10's theory and found that until Perfect 10 gave Google actual knowledge of specific infringements (e.g. specific URLs for infringing images), Google had no duty to act and could not be liable. It also held that Google could not "supervise or control" the third-party websites linked to from its search results, something most people (except apparently Perfect 10) probably already knew. The rule provides strong guidelines for future development and avoids the kind of uncertainty that could chill start-ups trying to get the next great innovation off the ground.

Finally, the court also rejected Perfect 10's attempts to turn web surfers into pervasive copyright violators. Specifically, Perfect 10 had claimed that Google users who looked at photos in their browsers were infringing the photos because their computers automatically "cached" a copy of the photo in memory. Thankfully, the ruling today affirmed that any such copying is a fair use and cannot be infringing.

Related Updates

A fight over unmasking an anonymous Reddit commenter has turned into a significant win for online speech and fair use. A federal court has affirmed the right to share copyrighted material for criticism and commentary, and shot down arguments that Internet users from outside the United States can’t...

San Francisco – The creator of popular post-fight commentary videos on YouTube is demanding an end to the Ultimate Fighting Championship (UFC)’s unfair practice of sending takedown notices based on bogus copyright claims. The creator, John MacKay, is represented by the Electronic Frontier Foundation (EFF). MacKay operates the “Boxing...

San Francisco – On Monday, May 6 at 11am, the Electronic Frontier Foundation (EFF) will argue that a San Francisco court should quash a subpoena from the Watch Tower Bible and Tract Society aimed at getting the identity of an anonymous Reddit commenter. Watch Tower is the supervising body...

Get ready for a tale as good as anything you’d see on television. Here’s the sequence of events: the website TorrentFreak publishes an article about a leak of TV episodes, including shows from the network Starz. TorrentFreak tweets its article, Starz sends a copyright takedown notice. TorrentFreak writes about the...

In a stunning rejection of the will of five million online petitioners, and over 100,000 protestors this weekend, the European Parliament has abandoned common-sense and the advice of academics, technologists, and UN human rights experts, and approved the Copyright in the Digital Single Market Directive in its entirety...

With only days to go before the final EU debate and vote on the new Copyright Directive (we're told the debate will be at 0900h CET on Tuesday, 26 March, and the vote will happen at 1200h CET), things could not be more urgent and fraught. That's why...

Last week, Facebook CEO Mark Zuckerberg announced a new “privacy-focused” direction for the company that, while sounding great in theory, also set off several alarm bells—including concerns about competition as the company moves to make its messaging properties indistinguishable from one another. As usual for Zuckerberg, it’s all...

Three years ago, we warned of a string of dangerous new policy proposals on the horizon. Under these proposals, platforms would be forced to implement copyright bots that sniffed all of the media that users uploaded to them, deleting your uploads with no human review. It’s happening. The European...

EFF has just filed an amicus brief in support of Google’s petition asking the U.S. Supreme Court to review the long-running case of Oracle v. Google. The case asks whether functional aspects of computer programs are copyrightable, and...

If you were in Washington, D.C. last week, you had a chance to be one of the lucky recipients of a parody newspaper spoofing the Washington Post and crowing about the “Unpresidented” flight of Donald Trump from the Oval Office as he abandoned the presidency. The spoof, created by activist...